Hfe Valdosta, LLC v. Angela Johnson

FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 30, 2026 In the Court of Appeals of Georgia A26A1309. HFE VALDOSTA, LLC v. ANGELA JOHNSON. BARNES, Presiding Judge. Angela Johnson brought this premises liability action against HFE Valdosta, doing business as Wild Adventures Theme Park (“Wild Adventures”), after she tripped and fell on an uneven walkway inside the park. Wild Adventures moved for summary judgment on the ground that the uneven portion of the walkway was a static condition that posed an open and obvious hazard, and the trial court denied the motion. Following the grant of its application for interlocutory review, Wild Adventure appeals, challenging the trial court’s summary judgment ruling. Because there are disputed factual questions as to whether the uneven surface upon which Johnson tripped was open and obvious and whether she had an unobstructed view of it, the trial court properly denied summary judgment to Wild Adventures. Accordingly, we affirm. Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56(c). “We review de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.” Callaway Gardens Resort v. Grant, 365 Ga. App. 222, 223 (878 SE2d 65) (2022) (quotation marks omitted). If there is any ambiguity or uncertainty in the evidence, “the party opposing the motion must be given the benefit of all reasonable doubts,” and “while a movant’s evidence is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence.” Brownphil, LLC v. Cudjoe, 379 Ga. App. 114, 118(2) (928 SE2d 224) (2026). Viewed in the light most favorable to Johnson as the nonmovant, the evidence showed that on the afternoon in question, Johnson was walking about three feet behind her son and his friend on a concrete walkway leading to a ride at the back of the amusement park operated by Wild Adventures. As she continued down the walkway, 2 Johnson’s foot “fell off of the side where it was uneven and twisted,” causing her to break her foot. Johnson described the area where she tripped as “broken” and “lower” than the surrounding area and as “slanted downwards.” She did not realize that the area was uneven until after she tripped and fell. Johnson had not previously traversed that section of the walkway and had not noticed any unevenness in any of the park’s other walkways that day. Johnson noted that in the area where she tripped, “[t]here [were] people on both sides coming and going ..., just getting in between the rides and walking around,” as there was a food stand and an attraction nearby. Johnson filed this premises liability suit against Wild Adventures, contending, among other things, that the hazardous condition of the walkway was hidden from plain view and that Wild Adventures had actual and/or constructive knowledge of the hazard posed by the uneven walkway but negligently failed to remove the hazard or warn park guests of its existence. Wild Adventures moved for summary judgment, arguing that the uneven walkway was an open and obvious hazard of which Johnson had equal knowledge. After a hearing, where the trial court heard argument from the parties, the court denied Wild Adventures’s summary judgment motion, concluding that there were 3 factual issues as to whether the hazard was in plain view. The trial court granted Wild Adventures a certificate of immediate review, and we granted Wild Adventures’s application for interlocutory appeal. This appeal followed. Wild Adventures argues that it was entitled to summary judgment because the uncontroverted evidence showed that the uneven walkway was an open and obvious static condition. We disagree. OCGA § 51-3-1 provides that when “an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim ... [our Supreme Court has] refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control. Am. Multi-Cinema v. Brown, 285 Ga. 442, 444(2) (679 SE2d 25) (2009) (citation modified). But in addressing those two elements, our Supreme Court has emphasized 4 that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” Id. at 445(2). It is true, as Wild Adventures points out, that an uneven walkway is considered a static condition,1 and under Georgia’s premises liability law, “[w]hen nothing obstructs an invitee’s ability to see a static condition, an owner/occupier may safely assume that the invitee will see it and will realize any associated risks.” Wells v. Khan Shell, LLC, 378 Ga. App. 79, 81 (923 SE2d 707) (2025). Thus, “[i]f the hazard created by a static condition is open and obvious, ... an invitee cannot recover for damages purportedly caused by the hazard.” Id. However, “the question whether any given hazard was sufficiently obvious is a question whether the invitee reasonably could have seen and avoided it in the exercise of ordinary care. And in tort law, questions about reasonableness under the circumstances are quintessentially questions for the factfinder.” Givens v. Coral Hosp.-GA, LLC, 317 Ga. 282, 284 (892 SE2d 782) (2023) (Pinson, J., concurring). See Am. Multi-Cinema, 285 Ga. at 445(2) (“how vigilant 1 A “static condition” is “one that does not change and is dangerous only if someone fails to see it and walks into it.” Wells v. Khan Shell, LLC, 378 Ga. App. 79, 81 (923 SE2d 707) (2025) (quotation marks omitted). 5 patrons must be for their own safety in various settings” is normally a question for the jury). Moreover, in addressing whether a hazard should have been so obvious to an invitee as to preclude an owner/occupier’s liability, we must remain mindful of our Supreme Court’s admonition in Robinson v. Kroger Co., 268 Ga. 735, 743(1) (493 SE2d 403) (1997), that an invitee is not required “to look continuously at the floor for defects” because “the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises.” Rather, the Supreme Court explained, the proper inquiry is “whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 748(2)(b). And that question should be left for jury resolution unless the evidence is “plain, palpable, and undisputed.” Id. See Am. Multi-Cinema, 285 Ga. at 445(2) (whether “customers should be held responsible for looking or not looking” generally “must be answered by juries as a matter of fact rather than by judges as a matter of law”). 6  This is not a case where the evidence is plain, palpable, and undisputed on the question whether the unevenness of the walkway was so open and obvious that Johnson should have seen it and avoided tripping. Johnson testified that she had not previously traversed the walkway in question, had not previously encountered any uneven walking surfaces at the park, and did not see the uneven portion of the concrete at issue until after she tripped and fell. Photographs of the area show cracks and seams in the walkway, but the downward slant of the concrete described by Johnson is not clear from the photographs. Moreover, the photographs contained in the record were clearly taken when the amusement park was closed, while Johnson testified that before she tripped, she was walking about three feet behind her son and his friend on the way to another ride with other patrons on both sides coming and going to various rides and attractions. In light of this record, the standard applicable to summary judgment, and our Supreme Court’s decision in Robinson, the trial court did not err in concluding that there were genuine issues of material fact regarding whether the unevenness in the amusement park’s walkway was so open and obvious that Johnson should have seen the hazard and avoided tripping. See Robinson, 268 Ga. at 743(1), 748(2)(b). See also 7 Callaway Gardens Resort, 365 Ga. App. at 230–31(2)(a) (jury question existed as to whether “height differential” at a sidewalk expansion joint that the plaintiff had not previously traversed was open and obvious, given witness testimony regarding the visibility of the sidewalk condition, and where “none of the photographs in the record purporting to show the height differential conclusively establish[ed]” the answer to that question); Strauss v. City of Lilburn, 329 Ga. App. 361, 364(1) (765 SE2d 49) (2014) (reversing grant of summary judgment to defendant owner where the plaintiff had trouble seeing the step down from her vantage point and there was “no evidence” that she had previously “walked either up or down” the step before her fall, and distinguishing static defect cases where “the plaintiff had previously traversed the same specific hazard under the same circumstances and/or admitted that she was not paying attention at the time of the fall”). Cf. Gutierrez v. Six Flags Over Ga. II , 367 Ga. App. 539, 541(1) (887 SE2d 352) (2023) (unevenness in amusement park walkway was open and obvious as a matter of law, where the unevenness was in an area “highlighted in yellow paint which could only increase its visibility”); Coral Hosp.-GA v. Givens, 363 Ga. App. 664, 665 (871 SE2d 325) (2022) (hazard posed by raised asphalt was open and obvious as a matter of law, where the plaintiff admitted that “the 8 transition between the white concrete and the black asphalt was clear, that the lighting in the area was good, and that nothing impeded her view”). Because this case raises the type of quintessential factual questions identified by our Supreme Court as best left for jury resolution, we affirm the denial of summary judgment.2 Judgment affirmed. Hodges, J., concurs. Markle, J., dissents. 2 The trial court also ruled that the “distraction doctrine” precluded summary judgment and denied Wild Adventures’s motion on that additional basis. See generally Robinson, 268 Ga. at 744(2)(a) (explaining that “the distraction doctrine holds that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted”) (quotation marks omitted). Because we affirm the denial of summary judgment on the basis that there were genuine factual issues as to whether the hazard was open and obvious, we need not reach this alternative basis for denying summary judgment. See Blondell v. Courtney Station 300 LLC, 362 Ga. App. 1, 13(3)(a) n.4 (865 SE2d 589) (2021). 9  A26A1309. HFE VALDOSTA, LLC v. JOHNSON. MARKLE, Judge, dissenting. Angela Johnson tripped over an uneven sidewalk, a static condition in plain view, as she walked down the sidewalk at Wild Adventures. The trial court denied Wild Adventures’ summary judgment motion, finding there were genuine issues of fact about whether the hazard was in plain view. The majority now affirms that conclusion. But, the majority’s expansive holding extends premise law to essentially make property owners the insurers of the safety of their invitees, in contravention of long-standing precedent. Because I believe that interpretation goes too far, I respectfully dissent.  It is well settled that a property owner has no duty to warn invitees of a static condition, such as uneven pavement, if the invitee has actual or constructive knowledge of the hazard. Crebs v. Bass Pro Outdoor World, 360 Ga. App. 121, 123 (860 SE2d 802) (2021); Jones Lang LaSalle Operations v. Johnson, 350 Ga. App. 439, 440 (829 SE2d 629) (2019); Nemeth v. RREEF America, 283 Ga. App. 795, 797(1) (643 SE2d 283) (2007). “If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.” McLemore v. Genuine Parts Co., 313 Ga. App. 641, 643 (722 SE2d 366) (2012). In other words, an invitee has equal knowledge of a hazard resulting from an open and obvious static condition, such as cracks and uneven walkways. See Robinson v. Kroger Co., 268 Ga. 735, 743(1) (493 SE2d 403) (1997) (explaining that an open and obvious hazard imputes knowledge when the hazard is in plain view “at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall.”). See also Wells v. Khan Shell, LLC, 378 Ga. App. 79, 81-82 (923 SE2d 707) (2025) (“An invitee is not entitled to an absolutely smooth or level way of travel. And it is common knowledge that small cracks, holes and uneven spots often develop in pavement;” thus, where the hazard is open and obvious, the plaintiff “is deemed to have had equal knowledge of” it. (citation 2 modified)); Gutierrez v. Six Flags Over Ga. II, LLP., 367 Ga. App. 539, 540(1) (887 SE2d 352) (2023) (addressing uneven walkway at theme park and finding it an open and obvious condition of which the plaintiff had constructive notice); Rentz v. Prince of Albany, 340 Ga. App. 388, 390(1) (797 SE2d 254) (2017). The majority finds summary judgment improper because the evidence was “ambiguous” or “uncertain.” But the record shows otherwise. The only evidence Johnson submitted in opposition to the motion for summary judgment was her deposition — in which she stated that nothing distracted her as she walked along this wide sidewalk at a normal speed — and an affidavit confirming that, when she looked at photographs of the area, she could “identify the hazard that caused” her fall. The photographs of the area clearly show defects in the sidewalk. Even viewing the record in the light most favorable to Johnson, there was no ambiguity or uncertainty. Rather, this evidence was simply insufficient to create a factual dispute. Robinson, 268 Ga. at 743(1); Wells, 378 Ga. App. at 81-82; Gutierrez, 367 Ga. App. at 541(1); Meadows v. Dollar General Store, 371 Ga. App. 695, 700(1) (902 SE2d 682) (2024) (summary judgment was proper where broken door was open and obvious static condition and there was no evidence plaintiff was distracted and unable to appreciate the risks); Coral Hospitality-GA. v. Givens, 363 Ga. App. 664, 665 (871 3 SE2d 325) (2022) (plaintiff deemed to have equal knowledge of uneven walkway that was open and obvious static condition); Gilcrist v. Meldi Sub, LLC, 363 Ga. App. 53, 57(1) (870 SE2d 541) (2022) (collecting cases and reaffirming that “a plaintiff’s equal knowledge will be presumed if the hazard was or should have been visible to [her] had [s]he been exercising ordinary care”); James v. Sirmans, 299 Ga. App. 262, 263 (683 SE2d 354) (2009) (reiterating that “small cracks, holes and uneven spots” in pavement are common and, where nothing obstructs or interferes with a person’s ability to see such a defect, “the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved”). Thus, Wild Adventures was entitled to summary judgment. Nothing in this conclusion is inconsistent with our Supreme Court’s holding in Robinson, or our application of it here. See Robinson, 268 Ga. at 743 (1) (“The ‘plain view’ doctrine is applied to a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall. Even though the invitee had no actual knowledge of the hazard before being injured, the invitee should have known of the hazard’s presence.”).1 Because I would 1 The majority relies on Justice Pinson’s concurrence in Givens, 317 Ga. at 283- 87, to suggest that our case law is inconsistent with Robinson. But that concurrence is 4 find this static condition to be in plain view, such that Johnson is deemed to have equal knowledge of it, I would reverse the trial court’s ruling. not binding precedent and was joined by only one other justice. See, e.g., Wells, 378 Ga. App. at 82, n.1. See also Thomas v. Alligood, 358 Ga. App. 703, 712(2)(b), n.4 (856 SE2d 80) (2021); OCGA § 15-2-16(a) (“In all cases decided by the Supreme Court, the concurrence of a majority of the Justices shall be essential to a judgment of reversal. ... In all cases decided by the court, with at least a quorum but less than nine Justices, the concurrence of at least five shall be essential to the rendition of a judgment.”). Notably, after these comments, the Supreme Court of Georgia denied review in Gutierrez. 5